Under the Water Industry (Schemes for Adoption of Private Sewers) Regulations 2011 ("Regulations"), any private sewers which were connected to the public sewerage system prior to 1 July 2011 will be automatically transferred to the statutory water and sewerage companies ("WaSC") on 1st October 2011.
Property owners have a right to appeal against the transfer but the grounds of challenge are very narrow.
The Government believes that this will be viewed by most property owners as a positive change. However, owners of larger more complex properties need to be aware of the possible adverse effects of the transfer and of some of the other issues arising from the drafting of the Regulations.
What is actually transferred on 1 October 2011?
For the purposes of the Regulations, a "sewer" is a sewer or drain which drains more than one property or building into the public sewer network. A "lateral drain" is that part of the private sewer or drain which runs from the boundary of the "curtilage" of an individual property over other property and then into the public sewer network.
All private sewers and lateral drains which connect to the public sewerage system as at 1 July 2011 will automatically transfer to the local WaSC on 1 October 2011.
Private pumping stations will transfer on a date no later than 1 October 2016.
Private sewers and lateral drains serving operational railways are expressly excluded from the transfer and, in respect of Crown land, the Crown has a right to opt out.
The relevant local WaSCs are required to serve notice on property owners within their area of operations by 1 August 2011, confirming which sewers and lateral drains are being transferred. It was recognised in the consultation that a full mapping exercise would have been prohibitively expensive. As a result, the notices will not ordinarily include a plan showing what is being transferred, but instead will contain a statement that any sewers or lateral drains (being those outside the "curtilage" of any single "property") will be transferred to them. We understand that these notices are currently being sent out by WaSCs to all their customers.
The key to understanding what is being transferred is to understand what falls within the "curtilage" of a single "property". Unfortunately "curtilage" is not defined either in the Regulations or in the Water Industry Act 1991 ("WIA 1991"). However, the Government's guidance indicates that the following will be considered to form a single property:
- caravan parks;
- Council provided traveller sites;
- operational railways;
- "some commercial or industrial sites".
It is the last reference that may cause particular uncertainty as owners of, for example, shopping centres or business parks, will not know for certain whether their properties will be considered to be a single property and therefore whether sewers and lateral drains which serve them have actually been transferred.
Some comfort can be taken from the fact that some of the WaSCs have said that they consider that a "single centrally managed site or curtilage" would be viewed as one property. However, we await further guidance on this point.
Is the transfer compulsory?
The transfer is automatic unless the property owner appeals within two months of service of the notice by the WaSC. This time period is absolute and late appeals will not be permitted. Appeals can be made on the following grounds:
that the sewage company does not have a duty to transfer the sewer or lateral drain because (for example):
- the sewer or lateral drain was exempted because it serves an operational railway; or
- it lies in Crown Land and the relevant authority has opted out of the scheme for transfer; or
- the proposed transfer will cause "serious detriment" to the property owner.
The Government has issued some guidance on what it considers constitutes "serious detriment". Unfortunately, the guidance makes it clear that the impact of the existence of an adopted sewer or lateral drain on the future development of a property will not constitute serious detriment. The rationale for this approach is that any development of the property would have involved relocation of the relevant sewer or lateral drain, whether it was adopted or not. However, property owners may take a different view, as whereas previously relocation was entirely within their own control, following adoption they will need to rely upon the statutory rules governing relocation by WaSCs on request.
What about drains constructed after 1 July 2011?
The initial transfer will only catch those sewers and lateral drains which are connected to the public network immediately prior to 1 July 2011. Any subsequent sewers and lateral drains to be connected to the public network will be caught by a supplemental scheme to be completed at a later undefined date.
Two further changes have been imposed by the The Regulations and the Flood and Water Management Act 2010 ("FAWMA 2010"). The first requires any developer wishing to connect a private sewer or lateral drain to the public network to enter into a section 104 agreement pursuant to the WIA 1991 with the relevant WaSC. Such agreements are already common. However, it will no longer be possible to connect to the public sewerage system without one. Secondly, mandatory standards of construction for sewers and lateral drains are to be imposed to ensure uniformity and ease of maintenance across the network.
What about privately owned pumping stations?
In recognition of the fact that adoption of pumping stations on private land is a much more complex matter than taking over sewers and/or lateral drains the transfer of pumping stations is to take place no later than 1 October 2016. Notices requiring transfer are being served now, however, and the same two month deadline for appeals applies.
What should you do now?
All property owners need to consider whether the transfer of their private sewer system is of concern to them and whether they have grounds to submit an appeal. If an owner does want to appeal, it must be mindful of the strict deadline for doing so, bearing in mind that notices may have already been served on utilities managers, managing agents or occupiers.